California Court of Appeal Jun 5, 2015 No. E060548Unpublished
Filed 6/5/15 P. v. Martinez CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E060548
v. (Super.Ct.No. RIF1205909)
MICHAEL MARTINEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael B. Donner,
Judge. Affirmed with directions.
Lynda A. Romero, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, and Sean M.
Rodriquez, Deputy Attorneys General, for Plaintiff and Respondent.
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I
INTRODUCTION
Defendant Michael Martinez appeals from judgment entered following jury
convictions for attempted murder (Pen. Code, §§ 664 and 187;1 counts 1 and 2), robbery
(§ 211; count 3), assault with a deadly weapon (§ 245, subd. (a)(1); counts 4 and 5)),
the inference of a calculated design to ensure death, rather than an unconsidered
“explosion” of violence.’”].) Defendant’s laughter, in response to Mendoza repeatedly
asking defendant who he had killed, demonstrated that, when he stabbed Mendoza,
leaving the knife blade embedded in Mendoza’s head, defendant acted with cold,
calculated judgment, rather than with unconsidered or rash impulse. Evidence of
defendant’s motive for the attack and the manner in which it was committed was
sufficient to support defendant’s conviction for attempted premeditated and deliberate
murder of Mendoza.
B. Attempted Murder of Marisnick
Defendant argues as to the stabbing incident involving Marisnick that there was no
evidence of planning activities before defendant attacked Marisnick, or any evidence of
motive for defendant’s attempt to kill Marisnick. Defendant asserts he did not know
Marisnick and had not encountered him before the attack. Defendant describes his
encounter with Marisnick as a random encounter in which Marisnick happened to be in
the wrong place at the wrong time and defendant became upset upon mistakenly
believing Marisnick and Sewell were giving him dirty looks. Defendant also argues the
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attack on Marisnick was sudden and in a burst of rage, rather than committed in a manner
so particular and exacting, in accordance with a preconceived design.
We conclude the evidence was more than sufficient to support a finding that
defendant acted with premeditation and deliberation when he assaulted and stabbed
Marisnick. Evidence of defendant’s motive to kill Marisnick includes testimony that,
before assaulting Marisnick, defendant accused him of giving defendant dirty looks, and,
according to Keyzers, Marisnick responded, “it’s not like that, but if you want it to be, we
can handle [it].” Defendant could have walked away but, instead, said “okay” and then
charged toward Sewell’s vehicle, reaching into the car through the front passenger
window, and punching and stabbing Marisnick four or five times in the face and arm with
a small Swiss Army knife.
Defendant’s conduct reflects that he felt disrespected by Marisnick not submitting
to defendant’s confrontational acts and was motivated to establish his dominance over
Marisnick by attacking him. His acts of attacking Marisnick, who was sitting inside the
car unarmed, and thereafter threatening to attack Keyzers and threatening Sewell with
carjacking Sewell’s car, show that during the incident involving Marisnick, defendant
acted deliberately, with cold, calculated judgment, rather than with unconsidered or rash
impulse. This is further apparent from defendant’s conduct after Sewell, Marisnick, and
Keyzers left, and defendant entered the AM/PM store, exclaiming to Mendoza, “I killed
the son of a bitch.” Defendant showed pride in committing a cold-hearted attack on
Marisnick.
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In addition, as with defendant’s multiple stabbings of Mendoza, the manner of
defendant’s attack of Marisnick, in which defendant repeatedly stabbed him in the head
four or five times, also supports a finding of premeditation and deliberation. (People v.
Hovey, supra, 44 Cal.3d at p. 556.) The repeated stabbings support an “‘inference of a
calculated design to ensure death, rather than an unconsidered “explosion” of violence.’”
(Ibid.) Although little time elapsed between when defendant first encountered Marisnick
and defendant attacked him, the process of premeditation and deliberation can occur
within a brief period of time. “‘The true test is not the duration of time as much as it is
the extent of the reflection. Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly . . . .’ [Citations.]” (People v. Mayfield,
supra, 14 Cal.4th at p. 767; People v. Solomon, supra, 49 Cal.4th at p. 813.) Substantial
evidence supports a finding that this occurred in the instant case. Before attacking
Marisnick, defendant reflected on Marisnick’s acts, which defendant construed as
challenging him by looks. We therefore conclude the evidence of motive and the manner
in which defendant attacked and repeatedly stabbed Marisnick was sufficient to support
the jury’s finding defendant committed attempted premeditated and deliberate murder.
IV
SUFFICIENCY OF EVIDENCE OF COUNT 7 CONVICTION
Defendant contends there was insufficient evidence to support his count 7
conviction for dissuading a witness from giving testimony in a trial (§ 136.1, subd.
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(a)(1)).2 Defendant asserts his conviction should be reversed because his conduct did not
fall within the statute charged in count 7.
A. Factual and Procedural Background
Count 7 of the second amended felony complaint (complaint) and information
allege that defendant violated section 136.1(a)(1) by “wilfully, unlawfully, knowingly
and maliciously prevent[ing] and dissuad[ing] a witness, to wit, RAFAEL AGUIRRE,
from attending and giving testimony at a trial, proceeding and inquiry authorized by
law.”
During the trial, defendant testified he threatened Aguirre when defendant became
aware Aguirre was calling the police and reporting the beer theft. Defendant also
testified that after his friends stole beer, he told Aguirre, “If you don’t shut up, I’m going
to hit you.” The surveillance video of the incident shows that right after the beer theft,
Aguirre and his coworkers discussed calling 911. Aguirre testified that defendant kept
telling Aguirre to leave him alone and that his companions, who stole the beer, were his
friends and they were all from the same gang. Defendant told Aguirre that defendant
could come around the back and kill Aguirre. At the time of that threat, Aguirre’s
coworker was in the process of calling 911.
The prosecution argued during closing argument regarding count 7: “And witness
intimidation. . . . [D]efendant tried to prevent or discourage Aguirre from reporting that
he was a victim to a crime. And remember, Mr. Aguirre said, we had a conversation with
2For ease of reference, we refer to section 136.1, subdivision (a)(1), as “136.1(a)(1)” and refer to section 136.1, subdivision (b)(1), as “136.1(b)(1).”
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my colleague about calling the police. The defendant was in the immediate vicinity.
You could see Mr. Aguirre hand the phone over. And Mr. Aguirre says that’s when the
defendant said, leave them alone. [¶] Mr. Aguirre, what did you understand that to
mean? He said, those guys that just took the beer, the guys that were with him, leave
them alone, or I’m going to come and fuck you up. I mean, that’s kind of the summary of
what was said. Does it matter that he wasn’t successful? Doesn’t matter that Mr. Aguirre
stood his ground and did call and came in here and did testify as a witness. It just matters
that the defendant did and said those things.”
Defense counsel described count 7 during closing argument as an “intimidating a
witness” charge. Defense counsel told the jury that in order to convict defendant of the
count 7 charge, the jury needed “to show that [defendant] was trying to prevent Mr.
Aguirre from reporting a crime.”
The court instructed the jury on count 7 at follows: “The defendant is charged in
Count 7 with intimidating a witness, in violation of Penal Code Section 136.1. To prove
that the defendant is guilty of this crime, the People must prove that: [¶] One, the
defendant tried to prevent or discourage Rafael Aguirre from making a report that he was
a victim of a crime to law enforcement. A person is a victim if there is an – if there is
reason to believe that a federal or state crime is being or has been committed or attempted
against him or her. It is not a defense that the defendant was not successful in preventing
or discouraging the victim. It is not a defense that no one was actually, physically injured
or otherwise intimidated.”
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The jury entered a verdict stating that the jury found defendant “guilty of a
violation of section 136.1, subdivision (a), subsection (1), of the Penal Code,
PREVENT/DISSUADE RAFAEL AGUIRRE FROM TESTIMONY, as charged under
count 7 of the information.”
B. Applicable Statutes
Section 136.1 enumerates various crimes involving witness and victim
intimidation. Subdivision (a)(1) of section 136.1, which is the subdivision cited in the
complaint and information, concerns dissuading a witness or victim from testifying
(“dissuading testifying”). Subdivision (a)(1) states in relevant part: “(a) [A]ny person
who does any of the following is guilty of a public offense and shall be punished by
imprisonment in a county jail for not more than one year or in the state prison: [¶] (1)
Knowingly and maliciously prevents or dissuades any witness or victim from attending or
giving testimony at any trial, proceeding, or inquiry authorized by law.”
Subdivision (b)(1) of section 136.1, which describes the crime of attempting to
prevent or dissuade a witness or victim from reporting a crime (“dissuading reporting a
crime”), provides: “(b) Except as provided in subdivision (c), every person who attempts
to prevent or dissuade another person who has been the victim of a crime or who is
witness to a crime from doing any of the following is guilty of a public offense and shall
be punished by imprisonment in a county jail for not more than one year or in the state
prison: [¶] (1) Making any report of that victimization to any peace officer or state or
local law enforcement officer or probation or parole or correctional officer or prosecuting
agency or to any judge.” This is the crime actually prosecuted in this case.
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C. Discussion
Defendant argues there was no evidence that Aguirre was dissuaded or prevented
from testifying at trial in violation of the charged crime of violating section 136.1(a)(1).
Defendant further argues section 136.1(a)(2) and section 136.1(b)(1) are more applicable
to the evidence but violations of those statutes were not charged and therefore
defendant’s count 7 conviction must be reversed.
The People acknowledge that the complaint and information mistakenly charged
defendant in count 7 with dissuading testifying, in violation of section 136.1(a)(1),
instead of alleging the actual crime of dissuading reporting a crime in violation of section
136.1(b)(1). The People argue that, nevertheless, because defendant was on notice the
prosecution intended to charge defendant with dissuading reporting a crime and the jury
was properly instructed on the intended charge, defendant was not prejudiced by the
charging error.
“Due process of law requires that an accused be advised of the charges against
him; accordingly, a court lacks jurisdiction to convict a defendant of an offense that is
neither charged in the accusatory pleading nor necessarily included in the crime alleged.
[Citation.]” (In re Fernando C. (2014) 227 Cal.App.4th 499, 502-503.) Defendant
contends he cannot be convicted of violating section 136.1(b)(1), dissuading reporting a
crime, because he was neither charged with the crime nor was the crime a lesser included
offense of the charged crime. There was also no evidence defendant prevented or
dissuaded any witness or victim from attending the trial or testifying. Although there was
evidence defendant attempted to dissuade Aguirre from reporting the beer theft crime in
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violation of section 136.1(b)(1), that crime was not alleged in the complaint or
information. Defendant argues that, therefore, under Fernando C., defendant could not
be convicted of the crime, unless the section 136.1(b)(1) crime is a lesser included
offense of the charged crime, the section 136.1(a)(1) crime.
The section 136.1(b)(1) crime is not a lesser included offense of the section
136.1(a)(1) crime. “Two tests are used to determine whether an offense is necessarily
included within another: the ‘elements’ test and the ‘accusatory pleading’ test. (People
v. Lopez (1998) 19 Cal.4th 282, 288.) The elements test asks whether all the statutory
elements of the lesser offense are included in the elements of the greater offense. (Ibid.)
‘Stated differently, if a crime cannot be committed without also necessarily committing a
lesser offense, the latter is a lesser included offense within the former.’ (Ibid.) Under the
accusatory pleading test, a lesser offense is included within a greater ‘“‘if the charging
allegations of the accusatory pleading include language describing the offense in such a
way that if committed as specified the lesser offense is necessarily committed.’
[Citation.]”’ [Citation.]” (In re Fernando C., supra, 227 Cal.App.4th at p. 503.)
In the instant case, all of the elements of the section 136.1(b)(1) crime are not
included in the section 136.1(a)(1) crime. A conviction under section 136.1(b)(1)
requires proof the defendant knowingly and maliciously prevented or dissuaded a witness
or victim from attending or giving testimony at trial. Those elements are not included in
the section 136.1(a)(1) crime, which requires proof the defendant attempted to prevent or
dissuade a crime victim or witness to the crime from making any report of that
victimization to any peace officer or law enforcement officer or probation or parole or
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correctional officer or prosecuting agency or to any judge. The charged crime concerns
dissuading a witness from testifying. The crime the People argue defendant was actually
convicted of involved dissuading a witness from reporting a crime. These two crimes
both involve dissuading a witness or victim but are different crimes. The instant case
does not involve convicting defendant of a more specific crime than a more general
statute alleged in the complaint. It involves designating the wrong subdivision of section
136.1 and describing the wrong crime.
This charging error raises the issue of whether defendant’s due process right to
notice of the charges against him was violated. (People v. Ramirez (2003) 109
Cal.App.4th 992, 999.) The due process right that, one accused of a crime must be
informed of the nature and cause of the accusation, “is satisfied when the accused is
advised of the charges against him so that he has a reasonable opportunity to prepare and
present a defense and is not taken by surprise by the evidence offered at trial.” (Ibid.)
“[T]he right to defend has two related components, namely, the right to notice of the
charges, and the right to present a defense to those charges.” (People v. Jones (1990) 51
Cal.3d 294, 317.)
Defendant’s reliance on People v. Mancebo (2002) 27 Cal.4th 735 for the
proposition the trial court could not substitute an unpleaded crime for another pleaded
crime, is misplaced. Mancebo is distinguishable in that the court’s holding turned on the
court finding noncompliance with the express pleading and proof requirements of section
667.61. In Mancebo, the court imposed two section 12022.5, subdivision (a), gun-use
enhancements, in the belief it could substitute an unalleged multiple victim circumstance
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(§ 667.61, subd. (e)(5)) for the expressly pleaded gun-use circumstances in order to
satisfy the “minimum number of circumstances” requirement for One Strike sentencing
(§ 667.61, subd. (f)).
Although the prosecution failed in People v. Mancebo, supra, 27 Cal.4th 735, to
allege in the information a multiple victim circumstance pursuant to section 667.61,
subdivision (e)(5), the trial court relied on the multiple victim circumstance during
sentencing. The court concluded it was supported by other crime allegations and
evidence the crimes were committed against multiple victims. On appeal, the appellant
objected to reliance on the multiple victim circumstance. The respondent argued the trial
court could rely on the multiple victims circumstance, even though it was not alleged in
the information.
The Mancebo court affirmed the Court of Appeal holding striking the section
12022.5, subdivision (a), gun-use enhancements on the ground relying on the multiple
victim circumstance violated the pleading and proof provisions of section 667.61 and the
defendant’s due process right to fair notice. There was no notice the People intended to
invoke the multiple victim circumstance to support One Strike sentencing, so that gun use
would become available as a basis for imposing additional section 12022.5, subdivision
(a), enhancements. (People v. Mancebo, supra, 27 Cal.4th at p. 739.) The Mancebo
court held the error was not harmless because the multiple victim circumstance had never
been pled and therefore could not be substituted in, in hindsight, as a basis for the One
Strike terms. (Id. at pp. 739, 754.)
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Mancebo is inapposite. It concerns sentencing error arising from not alleging a
circumstance necessary for imposition of a sentencing enhancement under section
667.61, which expressly mandates the facts of the sentencing circumstance must be
alleged in the information. The instant case concerns failure due to clerical error to plead
the correct crime; it does not concern the failure to allege a sentencing allegation relied
upon for purposes of imposing an enhancement under section 667.61. Here, the felony
complaint and information allegations were incorrect, but the record shows the trial court
and counsel understood the charge to be a different crime than that alleged. In addition,
the trial court provided proper jury instructions for the crime prosecuted, and both
counsel’s closing arguments related to the unalleged crime, showing defendant had notice
of the actual crime prosecuted.
Under California’s liberal pleading rules, a felony complaint is sufficient “‘if it
contains in substance, a statement that the accused has committed some public offense
therein specified. Such statement may be made in ordinary and concise language . . .
sufficient to give the accused notice of the offense of which he is accused.’ (Pen. Code,
§ 952.) There is ‘no requirement that the statute which the accused is charged with
violating be designated by number, and even a reference to the wrong statute has been
viewed of no consequence . . . .’ [Citation.] A mistake in designating the statute on
which a charge is based or in naming an offense is ‘“immaterial unless the defendant is
misled thereby . . . .”’ [Citation.] Consistent with this authority, we may not conclude
that a complaint is insufficient, or set aside a guilty plea or sentence unless we first
determine that a ‘defect or imperfection in matter of form’ has ‘prejudice[d] a substantial
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right of the defendant upon the merits.’ (Pen. Code, § 960.)” (People v. Ramirez, supra,
109 Cal.App.4th at p. 999.)
Here, the complaint alleges in count 7 a different crime than the crime the People
prosecuted against defendant. The incorrect allegations in the complaint and information
do not require reversal because the erroneous allegations in count 7 did not prejudice
defendant’s substantial right to notice of the actual crime prosecuted against him or
impede his ability to defend against the crime. The prosecution argues defendant was on
notice he was charged in count 7 with attempting to dissuade Aguirre from reporting a
crime. The prosecution reasons that defendant could not have reasonably believed he
was being charged with the crime of dissuading Aguirre from testifying because
defendant committed the offense at the AM/PM store before the trial had commenced,
and Aguirre testified at trial. The prosecution further argues that it was clear from the
preliminary hearing transcript that defendant understood he was being prosecuted for
attempting to dissuade Aguirre from reporting a crime. (People v. Jones, supra, 51
Cal.3d at p. 317.)
Our high court noted in Jones that “‘[i]t is clear that in modern criminal
prosecutions initiated by informations, the transcript of the preliminary hearing, not the
accusatory pleading, affords defendant practical notice of the criminal acts against which
he must defend.’” (Jones, supra, 51 Cal.3d at p. 318.) Even though the information in
the instant case erroneously alleged the crime in count 7 as dissuading testifying, Deputy
Vargas testified during the preliminary hearing that defendant told Aguirre not to call the
police and report that his friends had just stolen beer, because defendant’s friends “were
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his homies, and if [Aguirre] called, [defendant] was going to kill him.” There was no
testimony during the preliminary hearing that defendant dissuaded anyone from testifying
at trial or any other court proceeding. Following the preliminary hearing testimony, the
trial court found there was sufficient evidence to support the count 7 charge.
In addition to the preliminary hearing transcript showing evidence defendant
committed the crime of dissuading reporting a crime, the jury instructions regarding
count 7, the evidence presented at trial, and both counsels’ closing arguments
demonstrate that the parties, counsel, and the trial court all knew defendant was being
prosecuted in count 7 for the crime of dissuading reporting a crime, not the crime of
dissuading testifying. Defendant had the opportunity to defend against the crime, and did
so. Defendant therefore did not suffer any prejudice to his right to notice of the actual
offense prosecuted in count 7 or to his right to present a defense, as a result of the
erroneous description of the count 7 crime in the complaint, information, and jury verdict.
In addition, there was no likelihood of prejudicial sentencing error in the event the court
relied on section 136.1(a)(1), instead of section 136.1(b)(1), because sentencing is the
same for both offenses (§ 136.1, subds. (a) & (b)).
With regard to the misstatement of the crime and applicable statutory subdivision
in the verdict form for count 7, People v. Escarcega (1969) 273 Cal.App.2d 853, 858,
supports the proposition the clerical error is immaterial. In Escarcega, the defendant was
convicted of manslaughter, as a lesser included offense of murder (count 1). The crime
arose from a gang fight between rival gangs. The defendant committed manslaughter
when he shot a rival gang member in the abdomen. (Id. at p. 857.) The defendant argued
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on appeal that his manslaughter conviction was void because he was incorrectly
convicted of violating former subdivision 3 of section 192 (now codified as § 192, subd.
(c)), which concerns vehicular manslaughter. The court in Escarcega acknowledged the
defendant was not charged with vehicular manslaughter and could not have been
convicted of the crime because the evidence showed he died of a bullet wound.
The court in Escarcega concluded it was clear that the cited code section cited in
the verdict was clerical error, particularly since the jury instructions referred to the
correct crime of manslaughter. The Escarcega court explained: “[I]t is clear that the
only problem presented is one of a clerical error in that the subdivision number of Penal
Code section 192[] was incorrectly designated. The jury was instructed on voluntary and
involuntary manslaughter. It is evident that the court clerk gave the jury a verdict form
with a wrong Penal Code subdivision inadvertently designated, and the jury, in returning
that form, simply desired and intended to find defendant guilty of a manslaughter, which,
under the circumstances here present, was a ‘lesser included offense.’ It is, of course,
clear that more care should have been taken in the preparation of the forms of verdict so
that a question such as is now presented would not arise. Counsel for defendant
apparently understood what was intended by the verdict since no objection was then
made to the form of the verdict. When read in the light of the record, it is clear what the
jury intended in its determination. [Citation.] In giving effect to the manifest intention of
the jury, the clerical error will be disregarded. [Citation.] The verdict ultimately returned
can be understood only as evidencing the jury’s determination to convict defendant of
manslaughter. Necessarily, it was of a kind other than that which is committed in the
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driving of a motor vehicle. Under these circumstances, we may and should correct the
verdict and judgment as entered by striking therefrom the incorrect subdivision
reference.” (People v. Escarcega, supra, 273 Cal.App.2d at p. 858, italics added.)
Likewise, in the instant case the record shows that the verdict was incorrect due to
clerical error. It referred to the correct code section number, 136.1 regarding dissuading
a witness or victim, but designated the incorrect subdivision, (a)(1), instead of (b)(1),
along with describing the subdivision (a)(1) crime, instead of the subdivision (b)(1)
crime. In the instant case, the same clerical error occurred in the information and, most
likely, was carried over to the verdict form. As in Escarcega, the trial court instructed
the jury on the correct crime,3 there was no objection to the instructions or verdict for
count 7, both counsels’ closing arguments concerned the actual crime prosecuted, and the
evidence demonstrated that the crime of dissuading reporting a crime was the crime being
prosecuted against defendant. There was no evidence presented or argument relating to
commission of the subdivision (a)(1) offense of dissuading testifying. Defendant did not
demur or otherwise object to any asserted lack of notice. He therefore forfeited the issue
on appeal. (People v. Ramirez, supra, 109 Cal.App.4th at p. 997; People v. Bright (1996)
12 Cal.4th 652, 671 [“where defendant failed to object at trial to the adequacy of the
notice he received any such objection is deemed waived;” People v. Howington (1991)
233 Cal.App.3d 1052, 1058.)
3 The court in Escarcega reversed the conviction, however, on another ground: The trial court did not properly instruct the jury relative to manslaughter. (People v. Escarcega, supra, 273 Cal.App.2d at p. 859.)
23
When read in the light of the entire record, it is clear what the jury intended in its
count 7 verdict. In giving effect to the manifest intention of the jury, the clerical error
will be disregarded. The verdict ultimately returned can be understood only as
evidencing the jury’s intent to convict defendant of attempting to dissuade a witness from
reporting a crime in violation of section 136.1, subdivision (b)(1). (People v. Escarcega,
supra, 273 Cal.App.2d at p. 858.) The judgment, as reflected in the trial court minute
orders entered on November 4, 2013, and January 10, 2014, therefore must be modified
as to count 7, to reflect that defendant was found guilty of violating subdivision (b)(1) of
section 136.1, instead of section 136.1, subdivision (a)(1).
V
DISPOSITION
The language in the information and verdict form for count 7 erroneously
describes the count 7 crime actually prosecuted. The crime should have been described
in the information and verdict as attempting to dissuade a witness or victim from
reporting a crime, in violation of subdivision (b)(1) of section 136.1. The trial court is
therefore ordered to strike the incorrect crime statute, section 136.1, subdivision (a)(1),
from the judgment, and substitute in the correct statute, section 136.1, subdivision (b)(1).
The judgment is affirmed as modified. The trial court is further ordered to issue a
modified abstract of judgment showing defendant was convicted in count 7 of violating
section 136.1, subdivision (b)(1), not section 136.1, subdivision (a)(1). The trial court
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is directed to forward a certified copy of the modified abstract of judgment to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
HOLLENHORST J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions, holding that the evidence was sufficient to support the findings of premeditation and deliberation for attempted murder and that the clerical error in the information regarding the witness intimidation statute was harmless. The court directed the trial court to correct the judgment to reflect a conviction under Penal Code section 136.1, subdivision (b)(1).
Issues
Whether there was sufficient evidence of premeditation and deliberation to support the attempted murder convictions.
Whether the defendant's conviction for witness intimidation under Penal Code section 136.1, subdivision (a)(1) was supported by sufficient evidence despite the pleading error.
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“The process of premeditation and deliberation does not require any extended period of time.”
“The judgment and abstract of judgment should be corrected to show that defendant violated section 136.1, subdivision (b)(1), dissuading a witness from reporting a crime.”